Monday, August 22, 2016

In a decision handed down yesterday, a Texas federal district court issued a preliminary injunction applicable nationwide barring the federal government from enforcing Guidelines issued earlier this year interpreting Title IX as barring discrimination by schools on the basis of gender identity. In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity. (See prior posting.) In State of Texas v. United States, (ND TX, Aug. 21, 2016), a Texas federal district court in a suit brought by 13 states held that the Department of Education's Guidance incorrectly interpreted its regulation (34 CFR 106.33) on sex-segregated restrooms and locker rooms. The court said in part:

It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth.... Additionally, it cannot reasonably be disputed that DOE complied with Congressional intent when drawing the distinctions in § 106.33 based on the biological differences between male and female students....

The court held additionally:

The Guidelines are, in practice, legislative rules—not just interpretations or policy statements because they set clear legal standards.... As such, Defendants should have complied with the APA’s [Administrative Procedure Act's] notice and comment requirement. Permitting the definition of sex to be defined in this way would allow Defendants to “create de facto new regulation” by agency action without complying with the proper procedures.